S.D.N.Y.: Govt satisfied § 2705(b) nondisclosure requirements; NDO didn’t violate 1A

The government showed a justifiable basis for a nondisclosure order (NDO) under 18 U.S.C. § 2705(b) of the order directed to Google for six email accounts. Assuming strict scrutiny applied, the government showed it because nondisclosure could prevent compromising an investiation. Google LLC v. United States, 2020 U.S. Dist. LEXIS 48691 (S.D. N.Y. Mar. 10, 2020):

“The term prior restraint is used to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S. Ct. 2766, 125 L. Ed. 2d 441 (1993) (internal quotation marks and citation omitted). Prior restraints on protected speech are subject to a “heavy presumption” against their constitutional validity and “carr[y] a heavy burden of showing justification for the imposition of such restraint[s].” Org. for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 29 L. Ed. 2d 1 (1971); accord Lusk v. Vill. of Cold Spring, 475 F.3d 480, 485 (2d Cir. 2007). Content-based prior restraints are generally subject to strict scrutiny. See United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). Under strict scrutiny review, “the Government must demonstrate that the nondisclosure requirement is narrowly tailored to promote a compelling Government interest, and that there are no less restrictive alternatives that would be at least as effective in achieving the legitimate purpose” of the Government. John Doe, Inc. v. Mukasey, 549 F.3d 861, 878 (2d Cir. 2008), as modified (Mar. 26, 2009) (internal quotation marks and citations omitted).

Assuming, without deciding that the NDO must satisfy the strict scrutiny test, the NDO survives strict scrutiny review because it is narrowly tailored to protect a compelling Government interest and there is no less restrictive alternative that would be at least as effective in serving the Government’s legitimate purpose. The Government has a compelling interest in maintaining the secrecy of an ongoing criminal investigation. The investigation of crime is a core government function that secures the safety of people and property. “[T]here are some kinds of government operations that would be totally frustrated if conducted openly. A classic example is that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.” Press-Enter. Co. v. Superior Court of California for Riverside Cty., 478 U.S. 1, 9, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986). The Government has a compelling interest in maintaining the confidentiality of the existence of the Warrant, and the specific accounts being investigated, in order to avoid revealing the existence of its ongoing criminal investigation of individuals and entities who may be involved in the very conduct under investigation. Giving notice of requests to third parties “would substantially increase the ability of persons who have something to hide to impede legitimate investigations . …” S.E.C. v. Jerry T. O’Brien, Inc., 467 U.S. 735, 736, 104 S. Ct. 2720, 81 L. Ed. 2d 615 (1984). Thus, the Government’s interest in safeguarding the confidentiality of an ongoing criminal investigation is legitimate and compelling.

Further, the NDO is narrowly tailored because it prohibits only the disclosure of the existence of the Warrant and of the investigation. The plaintiff is still free to speak publicly about search warrants and government investigations, as long as it does not disclose the existence of this Warrant and the Government’s investigation. The NDO is also limited to a one-year time period.

The plaintiff argues that the NDO does not appear to be narrowly tailored in scope and duration because: (1) the NDO failed to select any particular statutory factor and lists that one “and/or” another of the statutory factors under 18 U.S.C. § 2705(b) were present, which suggests that the Government failed to substantiate a specific reason to justify the NDO and the Magistrate Judge did not consider whether the NDO was narrowly tailored to serve any specifically articulated interest; (2) the NDO does not reveal that the Government provided any facts and evidence in its ex parte application about why the harms may occur; (3) the NDO does not indicate why a less restrictive alternative does not exist, specifically the ability of the plaintiff to tell the general counsel or other legal representatives of its enterprise customers about the Warrant; and (4) the NDO fails to explain why an NDO of shorter duration would be insufficient to achieve the Government’s interests. None of these arguments have merit.

The Court turns to the plaintiff’s first two arguments. When the Government makes an application for non-disclosure under 18 U.S.C. § 2705(b), a court is required to issue a nondisclosure order to the person or entity to whom the warrant is directed, if it finds that there is “reason to believe that notification of the existence of the warrant” would result in at least one of the statute’s five enumerated harms. In its search warrant application, the Government provided a lengthy affidavit setting out particularly detailed evidence regarding the relationship of the data sought to the subjects of the investigation and to activities involved in the alleged crime. The affidavit also set out sufficient detail as to why premature disclosure of the Warrant and the existence of the investigation could reasonably lead to the destruction of or tampering with evidence and intimidation of potential witnesses, thus making information inaccessible to investigators, and how the disclosure could seriously jeopardize the ongoing investigation. Significantly, the Government did not rely on other statutory factors, specifically endangering the life or physical safety of an individual or flight from prosecution. See 18 U.S.C. §§ 2705(b)(1)-(2) . The three factors listed by the Magistrate Judge were limited to the bases presented in the Government’s affidavit.

The Magistrate Judge’s Order was justified by the evidence provided by the Government, which followed the guidance outlined in the DOJ policy memorandum that the plaintiff cites in its brief. See Memorandum for Heads of Department Law Enforcement Components, et al., from Rod J. Rosenstein, Deputy Attorney Gen., Policy Regarding Applications for Protective Orders Pursuant to 18 U.S.C. § 2705(b), at 2 (U.S. Dept. of Justice, Oct. 19, 2017) (available at https://www.justice.gov/criminal-ccips/page/file/1005791/download). The Government’s submissions contained specifically articulated interests, not boilerplate assertions, that justified the issuing of the NDO, and the Magistrate Judge did not use indeterminate language in the NDO. Furthermore, the plaintiff acknowledges that it has not seen the ex parte application that the Government submitted in support of its request for the NDO. Thus, the plaintiff’s arguments that the Government’s evidence in support of the NDO was insufficient are unjustified speculation.

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